Petition for Writ of Certiorari — Millner v. ITT Aerospace/Communications Division of ITT Corp.

Supreme Court brief1998

Ask Donna

What actually matters in this document.

Text

fe eu 8 WV

97 825 NOV 1 8 1997

OFMICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1997

United States of America

ex_rel.

Charles M. Millner

Relator

Petitioner,

ITT Aerospace/Communications

Division of ITT Corporation

Incorporated

Respondent.

On Petition For Writ Of Certiorari

To The United States Court of Appeals

For The Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

Charles M. Millner

Pro Se

7853 West — 600 North

Andrews, Indiana 46702

(219) 344-1666

QUESTIONS PRESENTED FOR REVIEW

Pro Se Petitioner (Millner) brought suit under the

False Claims Act 31 U.S.C. 3729-3733, against

Respondent (ITT). The District Court dismissed case

under Summary Judgement. Upon appeal, the —

Court concluded that Millner was not informed of how

to properly respond to a Summary Judgement, but did

not remand case back to District Court.

In order to remand the case back to District Court

for Jury Trial, why has the Appellate Court....

1. Demanded further proof in a matter that ITT does

not contest, thus requiring an unattainable level of proof.

2. Not allowed Millner to use the same document to

prove his case that the Court has used to dismiss it.

3. Determined that the Inventor (Millner) was unable

to have any personal knowledge of his Invention.

PARTIES TO THE PROCEEDING

The caption of the case contains the names of all

the parties to the proceeding.

ill

TABLES OF CONTENTS

QUESTIONS PRESENTED. ........2s000ss00000 —

PARTIES TO THE PROCEEDING............ li

pp 8 A eee ys 5 >. SR eae ill

Tiamat GF BUT EORITIES, 555.08 ccccsscesscccesees vi

PETITION FOR A WRIT OF CERTIOARI........ I

SPN IIE CREWS of cicvocoeesesckecusddesunce vwace 2

PR ici cnunhics seis sadigincedusn pseedincns 2

PE Abo isso <socnv ere skcFeh cen tndecaolieesss 3

REASONS FOR GRANTING THE PETITION.... 8

QUESTION NO. |

THE APPELLATE COURT STATES THAT...

“THERE IS NO EVIDENCE THAT THE

GOVERNMENT WAS CHARGE FOR WORK

WHICH MERELY DUPLICATED WORK

ALREADY PERFORMED,” BUT THE RECORD

INDICATES THAT ITT DOES NOT CONTEST

THE CHARGING, ONLY THE AMOUNT....... 8

TABLE OF CONTENTS - Continued

Page

II QUESTION NO. 2

THE APPELLATE COURT STATES THAT

“MILLER MADE TWO COMPLAINTS TO

AGENCIES OF THE ARMY. THEY WERE

INVESTIGATED AND REJECTED.” BUT

THE SAME AGENCIES PROVE THE

ALLEGATION THAT THE CONTRACTUAL

STRESS REQUIREMENTS WERE

eS NR ie eRe RNS roy a 13

Ill QUESTION NO. 3

THE APPELLATE COURT STATES THAT...

“THE IDEA WAS DEVELOPED IN THE

SUMMER OF 1987 BY DAN RIPPF AND

MILLNER, ITT EMPLOYEES WHO WERE

TESTING THE SINCGARS UNITS” BUT

THEN STATES... “WE HAVE FOUND NO

ASSERTIONS OF MATERIAL FACT TO

WHICH MILLNER COULD HAVE

TESTIFIED ON PERSONAL

PPAF REPRE oss cescsveperccceess eee fi

CFO a Oi sk 5 odn si dsdsssnccdavodeioosianeecs 23

Ps oink sdnus son paaguruaicesab cuasareans App.

A. Court of Appeals Decision.................. App.

B,. District Cort Omit... ccc ceecec serene App.

C. Order Denying Petition For Rehearing

TABLE OF CONTENTS -— Centinued

. 60

TABLE OF AUTHORITIES

None

Statutes and Ordinances

Page

CC OUNE HNN FS asc cxcveariaadcsedacasannrerpece 2

NE ONS Ns ic cis'cuc ke innawenoasocedaececaur cs 20, 24

CIE TOI ss nhos sven dcuncanacobonutausaseess 17

False Claims Act U.S.C. 3729-3733.......... 3

Rules of the Supreme Court.................... 1, 24

Other Authorities

“Federal Practice and Procedure”

by Wright, Miller, and Kane.................... 24

]

PETITION FOR A WRIT OF CERTIORARI

Charles M. Millner, an individual representing

himself, respectfully petitions for a Writ of Certiorari to

review the judgement of the United States Court of

Appeals for the Seventh Circuit.

Millner also requests that the Court take into

consideration that I am a pro se litigant with no legal

training, and will attempt to follow in all respects, the

idelines listed in the “Rules of the Supreme Court of

e United States” that was provided to me.

I am also aware of the overriding emphasis for

brevity and clarity in this document, and without

knowing exactly what issues the Court considers

relevant and those that it does not, this petition may

appear to be cumbersome.

OPINIONS BELOW

The opinion and order of the Court of Appeals,

(App. 1), is an “Unpublished Order Not To Be Cited Per

ircuit Rule 53.”

The opinion and and order of the District Court

(App. 19) is not reported.

JURISDICTION

The judgment of the Court of Appeals (APP. 1) was

entered on Ju y 21, 1997, and a Suggestion for

oe En Banc (App. 58) was denied on August 21,

1997.

STATEMENT

This matter was brought to the District Court’s

attention by Charles M. Millner, when he filed a

complaint with the District Court for the Northern

District of Indiana oe Wayne Division) January 10,

1994. It concerns alleged acts of fraud under the False

Claims Act 31 U.S.C. 3729-3733.

The False Claims involve contracts between the

United States Government and the ITT Corporation

(Respondent) in oer the combat communication

system known as “SINCGARS” (Single Channel

ound/Air Radio System).

The alleged acts of fraud concern the component of

the SINCG Communication System known as the

“Mounting Tray MT-6352” which 1s the mechanical

shock absorbing platform that is bolted to the tracked or

wheeled military vehicle. The remainder of the

SINCGARS Communication System is then attached to

this platform in order to isolate it from the mechanical

stress (vibration) that is impacting the vehicle while

traversing rough terrain and other forms of mechanical

stress experienced in a combat scenario.

Millner was a Senior Test Engineer at the ITT

SINCGARS facility that produced this equipment from

1983 to 1991, and was in charge of the test equipment

that performed the various production and acceptance

tests that were required by the SINCGARS Contract

before the Government would:accept delivery of these

systems.

The SINCGARS Mounting Tray consists mainly of

two metal plates separated by four shock isolators. These

shock isolators were not able to withstand the

mechanical stress (vibration) in what Millner contends

was the contractual requirement known as the “Group C

Vibration” test, which consisted of 12 hours of

“Wheeled” type vibration, and 6 hours of “Tracked” type

vibration.

Millner was part of a two man Engineering team

that discovered a simple inexpensive solution in 1987,

that not only would allow the SINCGARS Mounting

Tray shock isolators to endure the “Group C Vibration”

test, but three times the amount of mechanical stress

(vibration) of the 12 and 6 hour Contract requirement.

The alleged acts of fraud on the part of the ITT

Corporation involve the following:

- the concealment of the shock isolator solution for

2 years while negotiating a Government Contract

indicating to the Government that the solution was

unattainable.

__ =the manner in which the solution was eventually

disclosed to the Government.

- the claim by the ITT Corporation that this 1987

discovery needed additional testing before allowing it to

be implemented into production.

- the solicitation and acceptance of Government

funds to conduct extended testing for the purpose of

providing an estimate that was never forthcoming.

The District Court granted Summary Judgement

against Millner due to fact that he did not submit his

documents under oath (App. 40), or submit a “Statement

of Genuine Issues” (App. 22).

Millner was unaware of how to properly respond to

S Judgment and informed the District Court in

— anguage six days after ITT filed its Motion For

ummary Judgement as follows...

“2. That included within these numerous

documents, is considerable language that I am not

aware of all the ramifications that could

materialize, if not properly responded to in my

reply brief.” (District Court Document No. 80)

The District Court refused to respond in any manner to

this request by Millner.

When Millner appealed to the Appellate Court, the

Court concurred that...

“Neither ITT nor the District Court sent an

appropriate notice” (App. 14).

This would have normally remanded the case back

to the District Court as the Appellate Court states

“This Circuit has a rule that Pro Se litigants are

entitled to notice of the consequences of failing

to respond to a summary judgment motion.”

(App. 13)

However, the Appellate Court affirmed the District

Courts Order.

The fe ooo Court Order (App.! to 18) has

summarized Millner’s complaint into two main issues.

1. Was the “Group C Vibration” exposure that

consisted of 12 hours of “Wheeled” and 6 hours of

“Tracked” vibration ever a contract requirement, or was

it just merely a “proposed” contract requirement?

2. Was the solution that allowed the SINCGARS

Mounting Tray to endure the “Group C Vibration”

exposure, known as the “Jam Nut Configuration” a

“proven” solution, or not?

The following statements contained in the

—— Court’s Order (App.| to 18) will be the basis

: i e three “Questions Presented for Review and are as

ollows

Question No.1:

“There is no evidence that the government was

charged for work which merely duplicated work

already performed in 1987 by Rippe and

Millner.” (App. 13)

Question No.2

“Millner made two complaints to agencies of

the Army. They were investigated and

rejected.” (App.8)

Question No.3

“The idea was developed in the summer of

1987 by Dan Rippe and Millner, ITT employee

who were testing the SINCGARS units.”

(App.4)

“We have found no assertions of material fact

to which Millner could have testified on

personal knowledge.” (App. 15)

REASONS FOR GRANTING THE PETITION

A United States court of appeals has entered a

decision that has so far pita from the accepted and

usual course of judicial proceedings as to call for an

exercise of this Court’s supervisory power.

I. QUESTION NO. 1

THE APPELLATE COURT STATES THAT ...

“THERE IS NO EVIDENCE THAT THE

GOVERNMENT WAS CHARGED FOR WORK

WHICH MERELY DUPLICATED WORK ALREADY

PERFORMED,” BUT THE RECORD INDICATES

THAT ITT DOES NOT CONTEST THE CHARGING,

ONLY THE AMOUNT.

IA. ISSUE

One of the issues that the Appellate Court uses to

uphold Summary Judgement is that

“There is no evidence that the Government was

charged for work which merely duplicated work

already performed in 1987 by Rippe and

Millner.” (App. 13)

Br ct aan al ade

This particular issue was never a part of the

original complaint filed by Millner in 1994. As

discovery documents became available, Millner realized

that instead of the 1991 Government funded “Taguchi”

study being the first study that ITT fraudulently charged

the Government for work that was performed by Rippe

and Millner in 1987, it was the second such study. the

1989 P31 study was the first.

Millner’s attempt to amend the complaint was for

the Court to take “Judicial Notice” of the new

information contained in the discovery documents

(District Court document No.63). The District Court

refused to respond in any fashion to this request, and

then devoted three pages of this error of dates in its

Order (App.34 to 38) granting Summary Judgement, as

did the Appellate Court (App. 11).

The important issue here is that the Appellate

Court has set a “Standard of Proof” that Millner must not

only meet, but exceed, not in order to reverse a decision

issued after a full trial..., but just to have a trial.

IB. BACKGROUND

The “work” that is referenced by the Appellate

Court is one of the efforts known as a “P31” study. Page

18 and 19 of Millner’s Reply Brief contains the

following

“ITT indicates that there were a total of 16

“Studies” included in the “P31” pro . The

Government allotted ITT $614,956.00 (Doc.

No.90 Att. No.18 (Bates No. 326 to 332)) to

conduct these studies.

iad iy m:

The “P31 Study” in question contains 4

categories in the report which are contained on

pages 6 through 10 (Doc. No.90 Att. No.22 p.6

to 10 (Bates No. 344 to 348)). Subsection “3.2”

entitled “Shock Isolator” addresses the “Jam

Nut Vignes gorataadl which equates to one forth

of the study.

Millner does not have in his possession at

this time the dollar figure that ITT charged the

Government. However, if each of the 16 studies

were 3 ETH weighted, it would result in

$38,434.75 per study, where one fourth of a

“Study” would be equivalent to $9,608.69.

;

“

To further emphasize that the Jam Nut

Configuration was a significant part of this

particular “P31 Study” is the statement found in

the “Taguchi Study” on page one, subheading

titled “1.3 Background” (Doc. No.90 Att.

No.28 p.1 (Bates No.J2534)) where it states the

following....

“The primary concern of the initial mounting

tray design study (D.O. 26, Task 31AR) was

to incorporate a longer mounting stud and

jam nut on the tray isolator to improve

vibration performance.

IC. ARGUMENT

Millner contends that in order to meet the

Appellate Courts “Standard of Proof” to remand this

case back to the District Court for trial, that it would

take a full admission under oath from ITT, that would

contain in detail the actual dollar amount that it charged,

and was then paid, by the Government to ITT.

Millner contends that ITT has already submitted

documents to the Court that do not contest that money

was charged and received, but only contests the severity

of the charges.

Contained on pages 26 and 27 of the “Brief of

Pw pe 5 oye iled with the Appellate Court in

January | TT responds to Millners allegations of its

charges relating to the P31 study, and attempts to

diminish the allegations with the following quotations:

“the meg . r shock isolators was but one

aspect of each of the studies”

“neither focussed or even emphasized

the shock isolators”

“The Studies Funded By The Army Addressed

A Panoply Of Issues”

“They Did Not Focus Exclusively Or Even

Predominately On The Shock Isolators”

“the P31 Study addressed a wide variety

of issues”

“that part of the P31 Study that addressed

mounting tray issues was not limited to analysis

of the mounting tray shock isolators”

“Nor did the section of the P31 Final Study

relating to the mounting tray recommendations

focus on the shock isolators.”

If these were the answers to a question presented

during the course of a full trial of “did you, or did you

not, charge the Government in a 1989 P31 study for

work that was performed in 1987 by Rippe and

Millner”... what would a “Reasonable Man” or jury

conclude?

This information was already contained in the

record, The Appellate Court indicates that this is not

enough, if in fact is was part of the Complaint.

IT. QUESTION NO. 2

THE APPELLATE COURT STATES THAT

“MILLNER MADE TWO COMPLAINTS TO

AGENCIES OF THE ARMY. THEY WERE

INVESTIGATED AND REJECTED.”

BUT THE SAME AGENCIES PROVE THE

ALLEGATION THAT THE CONTRACTUAL STRESS

REQUIREMENTS WERE REDUCED.

IIA. ISSUE

The next issue that the Appellate Court uses to

uphold Summary Judgement is that

“Millner made two complaints to Agencies of the

Army. They were investigated and rejected.”

(APP. 8)

The two Army “Agencies” that the Court is

referencing are the “Army Criminal Investigation

Command,” and the “Defense Contract Management

Command.”

Nearly half of the Appellate Court Orders relates :

in one form or another to the issue of weather or not the f

12 hours of “Wheeled” vibration and 6 hours of '

“Tracked” vibration of the “Group C Vibration :

Exposure” was in fact a “Contractual Obligation.” The

importance of this is that the SINCGARS Mounting Tray

shock isolators could not withstand this exposure and

thus would not allow ITT to sell this equipment to the

Army.

Millner has contended that it was a Contractual

Obligation due to the fact that he was the person that

was in charge of the test equipment that subjected the

SINCGARS equipment to this test. He was also the

individual that pee the equipment, and in many

cases, personally ran the test equipment for this test from

1984 to 1991.

Millner has stated that in 1987 he was given a

“Waiver” to reduce the “Group C Vibration Exposure”

from 12 to 2 hours of “Wheeled” vibration, and from 6

to 2 hours of “Tracked” vibration. Again, if this

“Waiver” which is referenced in Millners original

complaint (District Court Document No.1 p.12 par.47),

was not issued by the Government, which allowed the

temporary reduction of the “Group C Vibration”

requirement, ITT would not have been allowed to sell

this product to the Government.

11 B. BACKGROUND

Contained on pages 4 and 5 of Millner’s

“Suggestion For Rehearing In Banc” document is the

following....

“IC.ADDITIONAL DOCUMENTATION TO

SUPPORT ISSUE 1

Page 6 of the Court’s order, the Court writes...

“Before beginning this lawsuit Millner made two

complaints to agencies of the Army. They were

investigated and rejected.”

If the Court is using these agencies reports

in 1 poe of Summery Judgement, the Court

should not object to the extraction of additional

excerpts from these agencies which are as

follows...

Army Criminal Investigation Command

report dated March 2. 1992 (Doc. No.88 Att.

No.8 P.2 and 3 (Bates No.00033 and 00034))

where starting at the bottom of page 3 in

reference to the testing of the shock isolators

states...

“After various solutions were tried, it was

decided that the problem could not be solved

and the government agreed to waive the

contractual requirement that they withstand

testing of longer duration.”

Defense Contract Management Command report

dated February 16, 1993 ye No.88 Att. No.6 P.3

(Bates No.000269)) middle of page in reference to

testing of shock isolators states...

“CECOM conceded by allowing the contract _

requirement for longer duration testing to be waived.”

_ Both agencies reference the waiving of “contract

requirements.”

Millner has provided numerous documentation

references to include the “A3013722 Specification’

document, that both ITT and Government personnel had

to approve, and two references from the same

Government Agencies that the Court has used to deny

Millner’s Appeal.

In addition, Millner has provided sworn testimony

from Douglas Doerr, the same individual that the Court

references throughout its Order, to substantiate that the

12 hours of “Wheeled” and 6 hours of “Tracked”

vibration, was contained in an official document that

contained this requirement.”

iC. ARGUMENT

The Court selected these Agencies reports and

held them up to the light, as part of its reasons to Affirm

the District Courts Order of Summary Judgement. They

must have met the Courts criteria for admissibility and

relevance in this matter. Thc authors of these reports

must not have been suspect of Rule 56g (Affidavits

Made in Bad Faith). The question then becomes that of

“Why” does the Court accept one line of these Agencies

reports and refuses to consider the next, that states in

lain language, proof, of the issue that the Appellate

ourt dedicates nearly half of its 12 page Order to?

This may be applicable after a full trial, but this is

Summary Judgement.

Ill. QUESTION NO. 3

THE APPELLATE COURT STATES THAT....

“THE IDEA WAS DEVELOPED IN THE SUMMER

OF 1987 BY DAN RIPPE AND MILLNER, ITT

EMPLOYEES WHO WERE TESTING THE

SINCGARS UNITS” BUT THEN STATES ... “WE

HAVE FOUND NO ASSERTIONS OF MATERIAL

FACT TO WHICH MILLNER COULD HAVE

TESTIFIED ON PERSONAL KNOWLEDGE.”

ILA. ISSUE

The final issue for review in which the Appellate

Court uses to uphold Summary Judgement is that

“The idea was developed in the summer of 1987

by Dan Rippe and Millner, ITT employees who

were testing the SINCGARS units.” (APP.4)

“We have found no assertions of material fact to

which Millner could have testified on personal

knowledge.”

(APP. 15)

The reason that these two quotations from the

Appellate Courts Order are used, first shows that the

Court fey ars that Millner was part of the two man

team that that “developed” the solution known as the

“Jam Nut Configuration”. The second quotation is self

explanatory.

This issue deals with weather or not the solution

known as the “Jam Nut Configuration” was, or was not,

a “Proven” solution.

As in “Question No. 2” nearly half of the

mm Courts Order that affirms Summary

Judgement, relates in one form or another to this issue.

Or a Lee cere ee

Millner contends that it was a “Proven” solution in

that the ITT Engineers that submitted the ay to ITT

Management, and the Reports (P31 Study) that ITT

submitted to the Government, all reflect that this was a

“Proven” solution to the inability of the SINCGARS

Mounting Tray to pass the 12 hours of “Wheeled”

vibration, and the 6 hours of “Tracked” vibration

contained in the “Group C Vibration” contractual

requirement.

Only after Millner filed his lawsuit on January 10,

1994, have “Affidavits” and “Depositions” of ITT

rsonnel and the use of an out of context quote from

illners deposition surfaced to indicate that this was

“Not” a “Proven Solution”.

IIIB. BACKGROUND

Contained on pages 6 and 7 on Millner’s

“Suggestion For Rehearing In Banc” document is the

following

uy | ISSUE 2:

MILLNER CONTENDS THAT THE

SOLUTION KNOWN AS THE “JAM NUT

CONFIGURATION” WAS A “PROVEN”

SOLUTION

| ITT’s present stance is that the “Jam Nut

Configuration” needed further testing. From its

conception in 1987 to present day, Millner is unaware of

any changes to this 1987 solution, or any further testing

from that which was performed by Rippe and Millner in

1987. Again, the “Jam Nut Configuration” only consists

of a nut on the end of a bolt to keep the bolt from

loosening

The Court accepts the Doerr deposition, disregards

Millner’s argument and supporting documents that were

generated by ITT Engineers at the time the incidents

actually took place, and uses an out of context excerpt

cr Millner’s deposition to uphold the District Courts

ruling.

Again, if the Court is agreeing that Pro Se litigant

Millner was denied proper disclosure of Rule 56, then

either remand the case back to the District Court for a

hearing, or treat Millner’s argument with the same

weight as the Appellee’s.

IIA. MILLNER’S DOCUMENTATION PROOF TO

SUPPORT ISSUE 2

_ _ Contained on pages 9 and 10 of Millner’s Reply

Brief filed February 1995 states the following. ....

“The significant documents are as follows:

- Original report by Rippe (Doc. No.90 Att. No.11

(Bates No. J107)) dated September 1, 1987, states

in reference to the Jam Nut Configuration and the

use of a stronger loctite adhesive...

“Both options discussed above have been proven

through 36 hours of random vibration.”

- Detailed report by os, (Doc. No. 90 Att. No. 13

(Bates No.J88 to J1 ) dated November 20, 1987,

States in the “Abstract” of the report (Bates No.J91)

referencing the results of the Jam Nut

Configuration...

“the average life of the shock isolators will be increased

several times in magnitude, under any type of vibration

input (sine, random single axis, or multiaxes).”

- P31 Study, which was a Government funded

study, and the first time that ITT revealed the

Jam Nut Configuration to the Government

(Doc. No.90 Att. No.22 (Bates No.336 to

352)) dated August 15, 1989, states under

subsection “Shock Isolator” on page 8 (Bates

No.346)....

“Two solutions have been identified that will |

correct the inadvertent rotation of the mounting

stud”

“The second solution incorporates a longer

mounting stud and a jam nut.”

iC. ARGUMENT

In this instance, the Appellate Court recognizes

Millner as one of two Engineers that developed the “Jam

Nut Configuration. Millner was also the individual that

oversaw all of the testing in the development and

validation of this solution. In fact, there is no record of

any further testing of the “Jam Nut Configuration” to the

present day.

The Court has ignored three separate documents

that were generated by ITT Engineers at the time the

incident took place, in which reference the “Jam Nut

Configuration” as:

“Proven through 36 hours of random vibration”.

“Life of the shock isolators will be increased

several times in magnitude”.

“Two solutions have been identified”.

Instead, the Appellate Court accepts Depositions,

and Affidavits generated by ITT personnel that were all

enerated after Millner filed his suit, and contradict ITT

ocuments obtained in Discovery, to justify its

Affirmation of Summary Judgement.

In this instance, the fact that Millner did not

submit his evidence under oath, or file a Statement of

Genuine Issues is not a factor. The Court indicated in its

Order that the Seventh Circuit “has a rule that Pro Se

litigants are entitled to respond to a Summary Judgement

Motion.” In this instance, the Court simply indicates that

an “Inventor” cannot testify as to any “personal

knowledge” of his “Invention.”

CONCLUSION

The three issues that are portrayed in this _

document are only a fraction of what Millner considers

“anomalies,” that have occurred throughout this matter.

Throughout this entire matter, Millner has made

every attempt to be credible and follow the rules of the

Court. To support his allegations, and to counter

statements made by the Respondent, Millner has simply

relied on intimate personal knowledge, and in the vast

majority of these instances, provided documents

enerated by, and provided to Millner, by the

espondent. More importantly, these documents were

a a “at the time that the event actually took

place.”

After reading the opinions and case law entries

concerning Rule 56 in “Federal Practice and Procedure”

by Wright, Miller, and Kane, I decided not to quote from

it. The reason being is that the vast majority of the

quotations would be applicable in Remanding this case

back to the District Court for a trial, and that the Court is

well aware of the intent of Rule 56.

Contained on pages 5 and 6 of the “Rules of the

Supreme Court of the United States, it states in part that

the Supreme Court considers issues that

A United States court of appeals has entered

a decision that has so far departed from the

accepted and usual course of judicial proceedings

as to call for an exercise of this Court's

supervisory power.

In addition, contained on page 5 of the same

document, it also states in part that the Supreme Court

considers issues for compelling reasons.

The compelling reason in this matter is the

survivability of the most important possession of the

men and women of our Armed Forces.........

communication.

There are over 75,000 of these SINCGARS

systems deployed with our re throughout the world.

undreds more are being manufactured and delivered

every month. These systems failed repeatedly when

subjected to the 12 and 6 hour Group C Vibration

exposure which simulated extensive use in a combat

scenario. They will fail again at the exact moment when

they are needed most.

I strongly believe that this matter falls within

these guidelines and therefore — that this petition

for a Wnit of Certiorari be granted.

Respectfully Submitted

Cb. Seo Pl

Charles M. Millner

7853 West - 600 North

Andrews, Indiana 46702

(219) 344-1666

Petitioner Pro Se

App. 1

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

UPUBLISHED ORDER

Chicago, Illinois 60604 NOT

TO BE CITED

Submitted January 29, 1997 PER

CIRCUIT RULE 53

Decided July 21 1997

Before

Hon. THOMAS E. FAIRCHILD, Circuit Judge

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. JOHN L. COFFEY, Circuit Judge

CHARLES M. MILLNER, _ ) Appeal from the United

) States District

Plaintiff-Appellant, ) Court for the Northern

) District of

) Indiana, Fort Wayne

) Division.

No. 95-3545 )

) No. 94C9

)

ITT AEROSPACE/ )

COMMUNICATIONS ) William C. Lee, Judge.

DIVISION OF ITT )

CORPORATION, )

INCORPORATED, )

Defendant- Appellee. )

App. 2

ORDER

Charles Millner brought a qui tam action under

the False Claims Act (“FCA”), 31 U.S.C. §§ 2729-33,

against ITT Aerospace/Communications Division of ITT

Corporation (“ITT”) Millner’s former employer. The

United States elected not to take over the action, leaving

Miliner free to proceed. The court granted ITT’s motion

for summary judgment. Millner has appealed.

Background

Since 1983, ITT has had contracts with the Army

for the development and production of communications

equipment for combat vehicles. The equipment involved

in this case is called SINCGARS (Single Channel

Ground Air Radio System). A unit consists of a radio

and a mounting tray. The radio is attached to the top of

the tray, and the bottom is to be attached to a vehicle.

The tray consists of two metal plates separated by four

rubber shock isolators (shock absorbers). Each shock

isolator is held between the plates by a bolt which passes

through the top plate, through the shock isolator, and

through the bottom plate, held in place by a nut. This

lawsuit involves the tray and the shock isolators.

After an examination of the briefs and the

record, we have concluded that oral argument is

unnecessary in this case; accordingly, the appeal is

submitted on the briefs and the record. See Fed. R. App.

P. 34(a); Cir. R. 34(f).

App. 3

The specifications initially required that

SINCGARS units be subjected to so-called sine

vibration testing. In 1986, the Army indicated its desire

to change to a more rigorous test. It wanted to subject

the units to random vibrations which must be endured

for six or twelve hours, depending on the type of vehicle

on which the unit would be mounted. Changing the test

would require agreement by ITT and the Army and a

change in the contract.

In 1987, before agreeing to change the test, ITT

conducted its own tests according to the Army’s

proposed changes and found that the shock isolators in

the mounting tray would deteriorate before the six or

twelve hours had elapsed. Evidently the shock isolators

could survive more than two hours of the random

vibration because it was decided that “changing out” the

mounting trays after two hours would avoid the problem

and permit the other parts of the units to survive the full

time. On November 20, 1987, ITT and the Army agreed

on the change to random vibration testing except that

shock isolators would be changed out after every two

hours.

App. 4

At the core of this lawsuit is an idea for

modifying the mounting tray which has been called the

Jam Nut Configuration. The idea was developed in the

summer of 1987 by Dan Rippe and Millner, ITT

employees who were testing the SINCGARS units. ITT

points out that three Army personnel were present full

time at ITT’s plant and had unlimited access, but it has

not produced any evidentiary material showing that any

Army personnel became aware of the Jam Nut

Configuration until August 15, 1989 when it was

described in a study called a P31 Study. A critical part

of Millner’s theory is that ITT deliberately concealed its

information about the Jam Nut Configuration from the

Army, with a fraudulent purpose so that claims it

presented were false or fraudulent.

On September 1, 1987, Mr. Rippe submitted a

memorandum to other ITT employees describing

“options” which had resulted in isolators surviving 36

hours of random vibration. One of the options was the

Jam Nut Configuration. This “method would be to use a

longer center bolt (new: 1/4-20 x 1.000) and jam nut

combination. With this method loctite (grade A), would

be applied only to the jam nut threads leaving the

threads inside the pedestal section clean.” It was said,

“The life and repairability of the isolators can be

maximized by a simple change in the assembly process.”

A cost estimate accompanied the memorandum. Both

options were again addressed in a study by Mr. Rippe,

dated November 20, 1987.

App. 5

Douglass Doerr, Program Manager of

SINCGARS for ITT explained in a supplemental

affidavit that “because SINCGARS contract is a fixed

price contract, ITT was unwilling to incerporate the jam

nut configuration unless and until the configuration was

adequately tested to determine the impact of the

configuration on the system from the standpoint of both

design and cost. Changing the configuration of the

attachment of the shock isolators would have entailed a

design change to the mounting tray that would have

necessitated complete environmental and reliability

(PRAT) testing, specifically focused on the effect of

incorporating the jam nut configuration with respect to

ballistic shock testing and vibration testing with respect

to reliability.” Although Millner argues that no further

testing was necessary a portion of his deposition seems

to concede that full testing had not occurred. When

asked about ballistic testing he had performed on the

Jam Nut configuration, he noted a possible problem.

Then asked, “Would it be fair to say you never got that

far in the testing?” he answered, “Correct.”

Delivery of SINCGARS units began in January,

1988. An internal ITT memorandum, dated January 15,

was entitled “B & P Hours: SINCGARS Mounting Tray

Design. It recited

App. 6

Because of problems associated with the

corrosion of the mounting tray, as well as,

the failure of shock isolators in vibration,

an overall redesign of the mounting tray is

in order. It is our opinion that the

government will be very receptive to a

complete new mounting tray design to

eliminate the possibility of cleansing agent

entrapment as well as providing for a new

shock isolator as a result of their

requirement imposing random vibration

on the program.

The memo continued under headings of

“Technical Description.” “Schedule,” and “Cost.”

An internal ITT memo dated August 30, 1988

read as follows:

We have decided not to proceed with the

redesign of the mounting tray at this

time. After a thorough review by all

functions, it did not offer the cost savings

we had originally envisioned; and

Purchasing now indicates they can

successfully procure the current tray in the

volume we require.

App. 7

This will be one of the candidates for the

P31 program as there is significant

advantage to the Government in reducing

the shock mount change out required with

the current design in the field.

There is little doubt the proposed new

design would be an improvement in

producibility and should be incorporated

if we can devise a cost-effective program.

The P31 SITNCGARS FINAL STUDY

REPORT was prepared for the Army by ITT. It was

dated 15 September 1989. It addressed sixteen topics,

No. 4 being Redesign of SINCGARS Mounting Tray.

Report Number 4 was dated August /5, 1989. It covered

a number of possible improvements, including

alternative materials and others. The section entitled

“Shock Isolator” reflected the alternative changes

originally proposed by Rippe in September 1987. The

Report recommended redesign of the tray.

On February 19, 1990, the Army wrote ITT

identifying three improvements contained in the P31

study and requested an ECP (Engineering Change

Proposal) for them. One of the three was the Jam Nut

Configuration. According to Doerr’s affidavit, a request

for an ECP is the first step in producing cost estimate

and ultimate contract modification.

App. 8

On April 24, 1990, ITT employee Fabish wrote

P. N. Clark asking that he advise the Contracting Officer

that ITT “is not willing to proceed with an ECP for

introduction of [the Jam Nut Configuration into

production on a fixed price basis until samples are

produced and proven in tests.”

On July 3, 1990, ITT sent the Army an estimate

of $48,481 for time and material for a study which has

been referred to as the Taguchi study. A report was

issued June 30, 1991. It recommended redesigning the

mounting tray to incorporate a stiffener nb and study of

shock isolators to determine performance differences

between vendors and minimum requirements for use

with the stiffer tray. ITT employee Frank Fabish,

testified that the government had decided not to order a

redesign of the mounting tray or change in the isolators.

His handwritten note to that effect is dated 2/10/92. No

other documentation of the decision is in the record.

Before beginning this lawsuit Millner made two

complaints to agencies of the Army. They were

investigated and rejected.

In March 1992 the Army Criminal Investigation

Command concluded:

App. 9

Infor.iation was developed that although

ITT Defense Corporation personnel

pursued alternatives to lengthen the life

expectancy of this part, no viable solution

was found and the government did not

consider this to be a problem warranting a

change in design specifications.

In February 1993 the Defense Contract Management

Command concluded:

CECOM did not consider this [the life

expectancy of the mounting tray shock

absorber] to be a problem of sufficient

magnitude to warrant changing the design

specifications. Instead, instructions were

issued to units processing this component

that the shock absorbers had to be

replaced on a regular basis to prevent their

failure.

The Millner Claims

The relevant portion of the False Claims Act (31

U.S.C. § 3729) imposes liability for a civil penalty and

treble damages on [a]ny person who.. knowingly

presents, or causes to be presented to an officer or

employee of the United States Government... a false or

fraudulent claim for payment or approval.. -Millner’s

complaint (with one exception) does not expressly

App. 10

identify particular claims for payment or approval

presented by ITT, but liberal construction is appropriate.

So construed we discern four possible claims.

That it knowingly presented claims for payment

for SINCGARS units, delivered from 1988 to 1991,

which were false in that ITT certified the units as

meeting contract requirements. (Complaint, paragraph

14).

Summary judgment in favor of ITT was correct

because the test requirement had been modified by

agreement to permit the change out of the shock isolators

after two hours, and the units passed the modified test.

That was what the contract required.

II.

That ITT knowingly presented claims for

payment for an approval of ITT’s making the Taguchi

study, September 12, 1990 to June 30, 1991. The claims

were allegedly false and fraudulent in that ITT had

concealed, up to those dates, its knowledge of the Jam

Nut Configuration. (Complaint, Paragraph 13).

App. I1

Summary judgment in favor of ITT was correct

because on August 15, 1989 the P31 report had

described the Jam Nut Configuration and in F ebruary

1990, well before the Taguchi study, the Army had

requested an ECP for it. The idea had been fully

disclosed to the Army before funds were sought or the

study authorized.

LI.

That ITT knowingly presented claims for

payment which were false because the units were

defective and not capable of sustained performance

under operational conditions. (Complaint, Paragraph 15).

Summary judgment in favor of ITT was correct

because all units conformed to the contract, including

the modified testing agreed to. Moreover ITT employee

Robert Jones made an affidavit that he collects Army

reports of problems with SINCGARS in the field and

they showed no field failures of the mounting tray shock

isolators.

App. 12

That ITT knowingly presented claims for

payment for SINCGARS units which claims were false

and fraudulent in that ITT concealed its ability to modify

the mounting tray to meet government specifications and

quality requirements and significantly increase the useful

life of the units, while continuously maintaining the

problem could not be solved. (Complaint, Paragraphs 12

and 18).

ITT had no right or duty to modify the mounting

tray unilaterally. It might have disclosed the idea of the

Jam Nut Configuration to the Army and opened

negotiations for making the modification at an

appropriate price. This claim would at the least require

proof that ITT made representations to the Army which

were false and fraudulent because of ITT’s possession of

the information in the 1987 Rippe memorandum and

report. The record contains no evidence of such

representations.

Millner argues a different claim, in substance that

ITT defrauded the government “When it accepted money

for a Government funded ‘P31’ Study report dated

August 15, 1989, in which the information presented as

being part of the 1989 “P31” study, contained

information that was gathered in an 1987 Engineering

investigation.” Millner Brief, p.6. See also pp 24 and 25.

Millner’s complaint did not contain that

App. 13

claim nor was it ever amended to include it. In any

event, the “P3I” Study dealt with sixteen topics, and the

topic devoted to redesign of the tray dealt with a number

of matters besides shock isolators. There is no evidence

that the government was charged for work which merely

duplicated work already performed in 1987 by Rippe

and Millner.

It does not appear that ITT had previously disclosed the

Rippe report and memorandum, but the evidence as a

whole would not support a jury finding that claims

presented for payment for work on P31 were false or

fraudulent. to pro se

Notice To Pro Se Litigant of Procedure in Opposing a

Motion for Summary Judgment.

Defendant’s brief in support of its motion for

summary judgment stated on page 6 that “To defeat a

summary judgment motion, the non-moving party must

be able to present the court with specific, admissible

evidence to demonstrate that a genuine issue of material

fact exists and requires trial.” This circuit has a rule that

pro se litigants are entitled to notice of the consequences

of failing to respond to a summary judgment motion.

Timms v. Frank, 953 F.2d 281, 285 (7th Cir.), cert

denied, 504 U.S. 957 (1992). “LT]his notice should

include both the text of Rule 56(e) and a short and plain

statement in ordinary English that any factual assertion

in the movant’s affidavits will be taken as true by the

district court unless the non-movant contradicts the

movant with counter-affidavits or other documentary

evidence.” Id.

App. 14

The sentence quoted from defendant’s brief is

insufficient and neither ITT nor the district court sent an

appropriate notice. Millner had the assistance of

appointed counsel from June 29, 1994 until counsel was

permitted to withdraw March 20, 1995. Counsel appears

to have assisted with discovery. Accordingly, Millner

was appearing pro se when the motion for summary

judgment was filled August 1, 1995. It is not reversible

error, however, to fail to give a Timms notice when it

appears beyond doubt that the pro se party can prove no

set of facts in support of his claim which would entitle

him to relief. Id. at 286.

Millner filed voluminous responses to ITT’s brief

and to affidavits of ITT employees filed in support of its

motion. He attached many ITT documents and portions

of depositions, which would have been admissible at

trial insofar as relevant, and it is evident that he relies

almost entirely on documents to prove his case. In

response to ITT’ s reply brief in support of its motion he

noted ITT’s argument that certain documents filed by

him were not “notarized or signed under oath.” He

indicated he was unaware of that requirement and

offered “that the contents contained in this document,

and all the documents that I have personally submitted to

the Court to include the initial filing dated January 10,

1994, will be sworn to upon the instruction from the

Court.” He indicates on appeal that the district court

should have permitted him so to swear. His responses,

however, are largely conclusory and argumentative in

App. 15

nature. Rule 56(b) requires that affidavits opposing

summary judgment “shall be made on personal

knowledge, shall set forth such facts as would be

admissible in evidence, and shall show affirmatively that

the affiant is competent to testify to the matters stated

therein.” In our search through these voluminous papers,

we have found no assertions of material fact to which

Millner could have testified on personal knowledge, and

to which he could have made affidavits fulfilling Rule

56, which would have raised a genuine issue with the

facts supporting the motion for summary judgment. It

would have been useless to permit him to swear to

arguments and conclusions.

We hold that Millner was not prejudiced by the failure to

receive a Timms notice.

ITT’s Counterclaim.

The district court also granted judgment for ITT

with respect to its counterclaim for reasonable attorney’s

fees and expenses incurred in defending the action.

31 U.S.C. § 3730(d)(4) provides:

If the Government does not proceed with the

action and the person bringing the action

conducts the action, the court may award to

the defendant its reasonable attorneys’ fees

App. 16

and expenses if the defendant prevails in the

action and the court finds that the claim of

the person bringing the action was clearly

frivolous, clearly vexatious, or brought

primarily for purposes of harassment.

As stated by Judge Lee:

In support of its assertion that Millner’ s only

intent is to harass ITT, ITT has provided the

court with a list of Millner’s previous acts against

ITT:

1. After his termination, Millner picketed

ITT’s property for over fifteen weeks

bearing a sign that stated “Vietnam

Veteran Fired From Army Contract. Thank

You, ITT.”

2. Millner conducted a defamatory letter-

writing campaign directed at United

States Senators and Representatives, the

President of the United States, multiple

branches of the armed services including

numerous Generals, Admirals, and other

ranking officers, and foreign heads of

State.

3. On July 30, 1991, Millner filed a

baseless charge with the National Labor

Relations Board alleging violation of the

National Labor Relations Act.

App. 17

4. On September 12, 1991, Millner filed

a baseless charge with the Equal

Employment Opportunity Commission

alleging that he was the victim of reverse

discrimination.

5. Finally. Millner filed the present

action on January 10, 1994.

ITT also points out that Millner admitted several

times in his deposition that he would continue to

pursue ITT in any way he could.

Clearly, ITT has shown that since Millner’s

termination he has pursued a pattern of conduct

calculated to harass ITT and cause it as much

harm as possible. It is also clear that Millner’s

False Claim Act is frivolous, vexatious, and

brought primarily for purposes of harassment.

Therefore, this court will grant summary

judgment in favor of ITT to the extent it is

seeking attorney fees and expenses as permitted

by § 3730(d)(4).

ITT sought summary judgment on its

counterclaim, and supported its motion with evidentiary

materials. Millner responded on the merits of the claim,

but made no response with respect to the counterclaim.

On appeal he argues that ITT should not have prevailed

on the merits, but has not addressed in any other way

Judge Lee’s conclusion as to the counterclaim.

App. 18

He has waived review and we see no need to

discuss this ruling.

The judgment appealed from is affirmed.

App. 19

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

FILED

95 SEP 27 AM 11:09

STEPHEN R. LUDWIG,

CLERK

U S DISTRICT COURT

NORTHERN DISTRICT

‘ OF INDIANA

UNITED STATES OF AMERICA,)

)

Plaintiff, )

)

ex rel. ) CIVIL NO.

CHARLES M. MILLNER, ) 1:94cv9

Relator, )

)

V. )

)

ITT AEROSPACE/ )

COMMUNICATIONS )

DIVISION OF ITT )

CORPORATION, INC., )

)

Defendant. )

App. 20

ORDER

This matter is before the court on a motion for

summary judgment filed by the defendant on August 1,

1995. The motion was fully briefed on September 26,

1995’. This matter was initially set for hearing, at the

Relator’s request. However, after a complete review of

all of the materials submitted to the court, the court has

determined that a hearing will not be helpful or

necessary.

Summary Judgment

Summary judgment is proper “if the pleadings,

depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that

there is no genuine issue as to

' The defendant filed its reply brief on September

15, 1995. The Relator filed a “response” to ITT’s reply

on September 26, 1995. Such a response is not permitted

under the Local Rules of this court. See L.R. 7.1.

However, as the Relator is proceeding pro se, his brief

filed September 26, 1995, as well as his response to the

Doerr Supp. Aff. (also filed on September 26, 1995),

have been considered by this court.

App. 21

any material fact and that the moving party is entitled to

a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

However, Rule 56(c) is not a requirement that the

moving party negate his opponent’s claim. Fitzpatrick v.

Catholic Bishop of Chicago, 916 F.2d 1254, 1256 (7th

Cir. 1990). Rule 56(c) mandates the entry of summary

judgment, after adequate time for discovery, against a

party “who fails to make a showing sufficient to

establish the existence of an element essential to that

party’s case, and in which that party will bear the burden

of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,

322 (1986). The standard for granting summary

judgment mirrors the directed verdict standard under

Rule 50(a), which requires the court to grant a directed

verdict where there can be but one reasonable

conclusion. Anderson v. Liberty Lobby. Inc., 477 U.S.

242, 250 (1986). A scintilla of evidence in support of the

non-moving party’s position is not sufficient to

successfully oppose summary judgment; “there must be

evidence on which the jury could reasonably find for the

plaintiff.” Id.. In Re Matter of Wildman, 859 F.2d 553,

557 (7th Cir. 1988); Klein v. Ryan, 847 F.2d 368, 374

(7th Cir. 1988); Valentine v. Joliet Township High

School District No. 204, 802 F.2d 981, 986 (7th Cir.

1986). No genuine issue for trial exists “where the

record as a whole could not lead a rational trier of fact to

find for the nonmoving party.” Juarez V. Ameritech

Mobile Communications. Inc., 957 F.2d 317, 322 (7th

Cir. 1992) (quoting Matsushita Electric du Co. td. V.

Zenith Radio Corp ., 475 U.S. 574, 586 (1986)).

App. 22

Initially, Rule 56 requires the moving party to

inform the court of the basis for the motion, and to

identify those portions of the “pleadings, depositions,

answers to interrogatories, and admission on file,

together with the affidavits, if any, which demonstrate

the absence of a genuine issue of material fact, Celotex,

477 U.S. at 323. The non-moving party may oppose the

motion with any of the evidentiary materials listed in

Rule 56(c), but reliance on the pleadings alone is not

sufficient to withstand summary judgment. Goka v.

Bobbitt, 862 F.2d 646, 649 (7th Cir. 1988); Guenin v.

Sendra Corp., 700 F. Supp. 973, 974 (N.D. Ind. 1988);

Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir.),

cert. denied, 464 U.S. 960 (1983).

So that the district court may readily determine

whether genuine issues of material fact exist, under

Local Rule 56.1, the moving party is obligated to file

with the court a “Statement of Material Facts” supported

by appropriate citation to the record to which the moving

party contends no genuine issues exist. In addition, the

non-movant is obligated to file with the court a

“Statement of Genuine Issues” supported by appropriate

citation to the record outlining all material facts to which

the non-movant contends exist that must be litigated.

See, Waldridge v. American Hoechst Corp. et al., 24

F.3d 918 (7th Cir. 1994). In ruling on a summary

judgment motion the court accepts as true the non-

moving party’s evidence, draws all legitimate inferences

in favor of the non-moving party, and does

App. 23

not weigh the evidence or the credibility of witnesses.

Anderson, 477 U.S. at 249—251, 106 S.Ct. at 2511.

Furthermore, in determining the motion for summary

judgment, the court will assume that the facts as claimed

and supported by admissible evidence by the moving

party are admitted to exist without controversy, except to

the extent that such facts are controverted in the

“Statement of Genuine Issues” filed in opposition to the

motion. L.R. 56.1

Substantive law determines which facts are

material; that is, which facts might affect the outcome of

the suit under the governing law. Anderson, 477 U.S. at

248. Irrelevant or unnecessary facts do not preclude

summary judgment even when they are in dispute. Id.

The issue of fact must be genuine. Fed. R. Civ. P. 56(c),

(e). To establish a genuine issue of fact, the non—

moving party “must do more than simply show that there

is some metaphysical doubt as to the material facts.”

Matsushita, 475 U.S. at 586; First National Bank of

Cicero v. Lewco Securities 860 F.2d 1407, 1411 (7th

Cir. 198S). The non—moving party must come forward

with specific facts showing that there is a genuine issue

for trial. Id. A summary judgment determination is

essentially an inquiry as to “whether the evidence

presents a sufficient disagreement to require submission

to a jury or whether it is so one-sided that one party must

prevail as a matter of law.” Anderson, 477 U.S. at 251-

252. Finally, the court notes that, “[i]t is a gratuitous

cruelty to parties and their witnesses to put them through

the emotional ordeal of a trial when the outcome is

foreordained” and in such cases summary judgment is

App. 24

appropriate. Mason v. Continental Illinois Nat’ Bank,

704 F.2d 361, 367 (7th Cir. 1983).

Discussion

The Relator, Charles 14. Millner (“Millner”),

filed this action on January 10, 1994, pursuant to the qui

tam provisions of the False Claims Act, 31 U.S.C. §§

3729—33 (1988). Section 3729 of the False Claims Act

provides, in relevant part, that:

Any person who . . . knowingly

presents, or causes to be presented to an

officer or employee of the United States

Government or a member of the Armed

Forces of the United States a false or

fraudulent claim for payment or approval .

. . is liable to the United States

Government for a civil penalty of not less

than $5,000 and not more than $10,000,

plus 3 times the amount of damages which

the Government sustains because of the

act of that person{.]

On May 13, 1994, pursuant to §3730(b), the United

States elected not to intervene in this action. Section

3730(b) provides, in relevant part, that:

Actions by private persons. -- (1) A person

may bring a civil action for a violation of

section 3729 for the person and for the

United States Government. . .

App. 25

(2) * * * The Government may elect to

intervene and proceed with the action

within 60 days after it receives both the

complaint and the material evidence and

information.

* a

(4) Before the expiration of the 60-day

period or any extensions obtained under

paragraph (3), the Government shall --

(A) _ proceed with the action, in

which case the action shall be conducted

by the Government; or

(B) notify the court that it declines

to take over the action, in which case the

person bringing the action shall have the

right to conduct the action.

Millner has brought the present action against his former

employer, ITT Aerospace/Communications Division of

ITT Corporation, Inc. (“ITT”), claiming that ITT has

made a “false claim” to the Army.

On June 29, 1994, this court appointed Scott T.

Niemann as pro bono counsel for Millner. Attorney

Niemann conducted extensive discovery in this case and,

on February 15, 1995, after concluding that Millner’s

case was “wholly lacking in merit”, requested that he be

App. 26

permitted to withdraw as Millner’s counsel. On February

28, 1995, Magistrate Judge Roger B. Cosbey conducted

a hearing on Attorney Niemann’s motion to withdraw.

On March 20, 1995, Magistrate Cosbey entered an order

finding that Attorney Niemann had conducted “an

extremely thorough and complete analysis of the

Relator’s claims” and permitted Attorney Niemann to

withdraw from the case.

In December 1983, ITT and the United States

Army entered into a contractual relationship for the

design, development, testing, and production of a new

military radio system to be used by Army troops, the

Single Channel Ground and Airborne Radio System

(“SINCGARS”)’. Several Army personnel were resident

full time at ITT’s Fort Wayne Plant and had unlimited

access to all ITT SINCGARS testing and production

facilities’. Army personnel were also fully participating

members of the Failure Review Board and Engineering

Change Board’. These Boards are joint

contractor/government panels which monitor design

changes and testing throughout the SINCGARS project

development’.

In his complaint, Millner asserts that ITT was

responsible under its contracts with the Army to develop

mechanical shock absorbent mounting tray assemblies®

? Affidavit of Douglas Doerr (“Doerr Aff.”) at § 2.

App. 27

which would protect the communications equipment

from damage from shock when installed in combat

vehicles under operational conditions’. Millner further

claims that during testing of the SINCGARS and its

mounting tray it was discovered that the four shock

isolators on the mounting tray assembly failed*.

According to Millner, he and a coworker, Dan Rippe,

developed a simple and inexpensive modification to the

mounting tray (the “jam nut configuration”) which

lengthened the life of the tray and thereby lengthened the

useful life of the SINCGARS’.

Millner next claims that ITT concealed the proposed

modification of the mounting tray from the Army and on

September 12, 1990, accepted a contract from the Army

Communications-Electronics Command (“CECOM”)’°

* Doerr Aff. at q 4.

5 id

° A mounting tray is a simple piece of equipment

consisting essentially of two metal plates separated by

four rubber shock absorbers or “shock isolators”. Doerr

Aff. at J 6.

Complaint at § 9

Complaint at § 11.

Complaint at § 12.

App. 28

to conduct a “mounting tray shock isolator design study”

and completed the study on June 30, 1991, still without

revealing the corrective modification’' . Thus, Millner

concludes that from 1987 to 1991, ITT knowingly

submitted systems to the Army which failed to meet

quality and shock resistance requirements of the

contracts, but certified these systems as meeting contract

requirements in its claims to the Army for payment

under the contract’.

Millner is seeking a judgment against ITT “in the

amount of all payments received from the United States

Army from 1986-1993 for defective mounting trays in an

amount in excess of $3,000,000" and “for all payments

received by ITT from the government for

communications equipment to replace sets damaged by

defective mounting trays in [sic] amount in excess of

$100,000,000.'*”. Finally, Millner is seeking treble

damages and costs as provided in §3729 of the False

Claims Act’?.

‘’ CECOM is the Army agency responsible for,

among other things, contracting for the development of

communications systems, including SINCGARS.

CECOM is the agency of the Army which has primary

authority over the SINCGARS program. Doerr Aff. at §

Complaint at § 13.

Complaint at § 14.

Complaint at ¥ 19.

Complaint at § 20.

Complaint at § 21.

App. 29

The court would note here for the record that

prior to filing this complaint with this court, Millner

filed complaints directly with the Army. As a result, two

agencies of the Army, the Army Criminal Investigation

Command (“CID”) and the Defense Contract

Management Command (“DCMC”) have each conducted

investigations at ITT’s facilities regarding Millner’s

allegations with respect to the mounting tray'® The

DCMC conducted a three-day on-site investigation in

January 1993 and issued a report dated February 16,

1993. The report concludes:

CECOM did not consider this [the life

expectancy of the mounting tray shock

absorber] to be a problem of sufficient

magnitude to warrant changing the design

specifications. Instead, instructions were

issued to units processing this component

that the shock absorbers had to be replaced

on a regular basis to prevent their failure.

Bates No. 87.

In March 1992, the CID investigated Millner’s

allegations and concluded:

App. 30

Information was developed that although

ITT Defense Corporation personnel

pursued alternatives to lengthen the life

expectancy of this part, no viable solution

was found and the government did not

consider this to be a problem warranting a

change in design specifications.

Bates No. 263.

For purposes of further background information,

the court wall next discuss the various vibration testing

that ITT subjected the SINCGARS system to. The

purpose of vibration testing is to simuiate the vibration

stresses experienced by the SINCGARS system in the

field and under combat conditions'’. When ITT and the

Army entered into negotiations and a contractual

relationship for the design and development of the

SINCGARS system, the conventional vibration testing

which the Army required of military hardware was sine

vibration testing '*. Thus, ITT designed the SINCGARS

system to withstand the stresses of sine vibration

testing!®

App. 31

In 1986, after ITT had designed the SINCGARS

system to pass sine vibration testing requirements, the

Army wanted to modify the SINCGARS contract to

require random vibration testing, which the Army felt

more accurately simulated field and combat conditions”’.

ITT was unsure of how well the SINCGARS system

would withstand random vibration testing, and was

concemed that the system would have to be partially or

completely redesigned, leading to new or increased costs

to develop and produce the SINCGARS system”’. The

SINCGARS contract was a fixed-price contract, making

any cost increase a subject of negotiation between ITT

and the Army”. To determine the impact, both from a

design and performance standpoint and from a cost

standpoint, of a change from sine to random

vibration testing, ITT tested the SINCGARS system

using the Army’s proposed new random vibration testing

requirements”. ITT performed this testing in 1986 and

1987 before it agreed to modify the contract to substitute

random vibration testing for sine vibration

‘' Doerr Supp. Aff. at § 4.

Id.

9 Ig

° Doerr Supp. Aff. at ¥ 5.

Doerr Supp. Aff. at 795, 16.

App. 32

testing’. Random vibration testing, including the length

of test time and the change out of mounting trays’, did

not become a part of the SINCGARS contract until the

Contract Rebaseline Modification was executed on

November 20, 1987”°.

In support of its motion for summary judgment,

ITT strongly and steadfastly claims that there was no act

of concealment with respect to its contract with the

Army. ITT admits that Rippe and Millner devised a

proposed improvement to the mounting tray shock

isolators, but argues that it did not conceal this proposed

improvement. In fact, ITT argues that it is undisputed

that ITT presented the Rippe/Millner idea to the Army in

September 1989 as part of a comprehensive list of

suggested changes in the SINCGARS contract.

According to ITT, the Army simply rejected the idea and

the proposed improvement never became part of the

contract between ITT and the Army. ITT further asserts

that the

*> Doerr Supp. Aff. at § 5.

*4 Doerr Supp. Aff. at § 7.

*> ITT had implemented a change in the testing

procedure in 1987 which allowed the shock isolators on

the mounting tray to be changed out every two hours

during the production reliability acceptance tests.

*° Doerr Supp. Aff. at § 11; Bates No. J83-J84.

sialic

App. 33

improvement to the shock isolators was not necessary as

the Army had not reported any field failure of the

SINCGARS attributable to failure of the shock isolators.

As ITT correctly points out, to prove that ITT is

liable to the Army under the False Claims Act, Millner

must prove that ITT knowingly submitted a false claim

or made false statements them to be false. United States

ex rel. Hagood v. Sonoma County Water Agency, 929

F.2d 1416, 1421 (9th Cir. 1991). ITT also takes the

position that Millner must establish four elements to

prevail in this action:

(1) that ITT presented or caused to be

presented to an agent of the United States

a claim for payment;

(2) that the claim was false or

fraudulent;

(3) that ITT knew the claim was false

or fraudulent; and

(4) that the United States suffered

damages as a result of the false or

fraudulent claim.

ITT has cited Young-Montenay Inc. v. United States, 15

F.3d 1040, 1043 (Fed. Cir. 1994), which in turn cites

Miller v. United States 550 F.2d 17, 23 (Ct. Cl. 1977), in

support of its position.

App. 34

The United States has filed an amicus curiae brief

in which it takes the position that ITT has incorrectly

argued that Millner is required to establish that the

United States suffered damages as a result of the false or

fraudulent claim. The United States argues that the plain

language of the False Claims Act specifies that the

plaintiff or relator, under any circumstances,

is entitled to a penalty of between $5,000 and $10,000

for every false claim or statement proven, plus any

damages proven. 31 U.S.C. §3729(a).

A review of the case law reveals that Young-

Montenay, supra, did in fact state that damages to the

United States must be proven. However, Miller, supra,

the case cited for this proposition, does not hold that

damages must be proven. Rather, as the government

argues, the statute and the case law clearly indicate that

damages need not be shown in order to recover the civil

penalty under the False Claims Act. Rex Trailer Co. v.

United States, 76 5. Ct. 219 (1956); Hagood, supra;

United States v. Kensington Hosp., 760 F. Supp. 1120

(E.D. Pa. 1991). Thus, this court will not require Millner

to meet part four of the test discussed above.

Nevertheless, ITT has argued that Millner cannot

meet parts two and three of the test. Specifically, ITT

claims that there were no false or fraudulent claims

made to the Army as the Army had full knowledge of the

jam nut configuration as a proposed solution to the

shock isolator problem. According to ITT’s evidence,

App. 35

ITT and the Army contracted for a Preplanned Product

Improvement Study (“P31”) in 19887’. The purpose of

this study was to assess a variety of potentially

problematic aspects of the SINCGARS system, one of

which was the mounting tray shock isolators**. With

respect to the shock isolators, the September 15, 1989,

P31 Final Study Report prepared by ITT for CECOM

States:

Two solutions have been identified that

will correct the inadvertent rotation of the

mounting stud. The first solution utilizes

Grade A Loctite to secure the mounting

stud to the shock isolator. The second

solution incorporates a longer mounting

stud and a jam nut.

Using Grade A Loctite will increase

the retention of the mounting stud/pedestal

threaded interface over the currently—

used Grade H Loctite. The Grade A

Loctite will also, however, complicate the

rework problems of removing the

mounting stud from the shock isolator.

*” Doerr Aff. at q 8.

28 Id

App. 36

A longer mounting stud can be

installed into the isolator and a jam nut

can be secured onto the mounting stud

from the backside of the isolator. The use

of the longer stud and jam nut eliminates

both the need for Loctite and the rework

problems associated with the disassembly

of the mounting stud from the isolator

assembly.

Doerr Aff at § 9 and Ex. “A” to Doerr Aff., Bates Nos.

J121-J157, at J151.

The P31 Study’s “Conclusions and

--Recommendations” section stated that:

Results of this study indicate that a

significant cost reduction and increased

mechanical integrity can be accomplished

for the SINCGARS mounting tray. The

new design wil! eliminate the corrosion,

manufacturing and performance problems

that affect current mounting tray design.

Based on the above conclusions, it is

recommended that ITT-A/OD and the

Army redesign the mounting tray. A

parallel design approach that evaluates

multiple materials (cast aluminum and

plastic) should be implemented.

App. 37

Bates No. J155.

ITT also points out that as early as February 19,

1990, William Newell, the contracting officer, had (as a

result of the P31 Study) requested that ITT generate

Engineering Change Proposals (“ECP”) for three

improvements, the first of which was:

Product Improvement No. 4, Mounting

Tray, paragraph 3.2 entitled “shock

isolator.” An ECP is required to

incorporate a longer mounting stud and

jam nut on the isolator to improve the

mounting tray’s vibration performance.

| Cut-in to production is desired as soon as

possible.

* * *

It is requested that concurrent with the

| submission of the above ECP’s, ITT

i provide this office with a firm fixed price

proposal to incorporate this effort into the

SINCGARS Ground contract.

* * =~

This letter is only a request for

proposal and in no way authorizes the

contractor to begin work on this effort.

This letter shall not be construed as

authorizing an increase in contract price,

nor shall it relieve the contractor from any

of the terms or conditions of the contract.

App. 38

Bates No. J212-J213.

ITT argues that the Army was obviously aware of

the jam nut configuration as a proposed solution as early

as February 1990, as the Army could not have requested

an Engineering Change Proposal for a modification of

which it was unaware.

Although Millner is obviously of the belief that

the jam nut configuration was not incorporated into the

mounting tray design because ITT concealed this

improvement from the Army, according to ITT the Army

simply rejected the jam nut configuration. To support

this assertion, ITT has provided the court with the

deposition testimony of Robert Fabish, a former

SINCGARS Program Manager. Referring to a

handwritten note dated February 10, 1992 appended to a

Failure Review Board Submittal Memorandum”’, Fabish

indicated that the government made the ultimate decision

not to incorporate the jam nut configuration”.

In light of all of the above evidence, ITT

concludes that the Army’s knowledge and rejection of

the jam nut configuration bars Millner’s action under the

False Claims Act. ITT insists that it performed its

contract exactly in conformance with the requirements

of the contract, which contract reflected the Army’s

decision to retain the original mounting tray design.

App. 39

ITT further argues that, even assuming that Millner

is right and that the SINCGARS system would be a

better, more reliable radio with a vastly increased life

span with the jam nut configuration, Miliner’s False

Claims Act action still fails. As the Ninth Circuit stated

in Wang v. FMC Corp., 975 F.2d 1412, 1421 (9th Cir.

1992):

Without more, the common failings of

engineers and other scientists are not

culpable under the (False Claims] Act.

[This] case betrays a serious

misunderstanding of the Act’s purpose. the

weakest account of the Act’s “requisite intent” is

the “knowing presentation of what is known to be

false.” The phrase “known to be false” in that

sentence does not mean “scientifically untrue”; it

means, “a lie.” The Act is concerned with

ferreting out “wrong doing,” not scientific errors.

What is false as a matter of science is not, by that

very fact, wrong as a matter of morals. The Act

would not, put either Ptolemy or Copernicus on

trial.

*” Fabish Dep. Ex. 17. Exhibit 17 reads: “Gov't

has decided that a redesign or change in isolators is not

warranted. They are going to buy per dwg pkg [drawing

package]. Bob Fabish. 2/10/92.”

*° Fabish Dep. at 34:19 — 35:8.

App. 40

See also United States ex rel. Anderson v. Northern

Telecom, Inc., 52 F.3d 810, 815-16 (9th Cir. 1995).

Thus, according to ITT, the fact that ITT and the Army

did not agree to incorporate the jam nut configuration

into the SINCGARS contract, even if doing so would

have improved the SINCGARS system, does not give

Millner a cause of action under the False Claims Act.

Millner filed a 25-page response to ITT’s motion

for summary judgment on August 25, 1995. Millner also

filed a “response” to each of ITT’s affidavits filed in

support of its motion for summary judgment”’. The filing

of “responses” to affidavits is not sufficient under Rule

56 to defeat summary judgment. Rather, affidavits must

be rebutted by evidence, which may include countering

affidavits. For the most part, Millner’s “responses”

consist of arguments that he does not believe the

information in the affidavits. To the extent that

supporting evidence is lacking, Millner’s arguments are

insuff4.cient to create a genuine issue of material fact.

*! As ITT has pointed out, the filing of these

responses (which total 52 pages) is in violation of this

court’s briefing limitations. See Order of August 7, 1995

and Local Rule 7.1(b).

App. 4 1

In his responsive brief, Millner does not address

ITT’s arguments and evidence that the Army knew of the

jam nut configuration but ultimately rejected the idea.

Millner now focuses his arguments on his allegations

that ITT concealed the jam nut configuration from the

Army for several years in order to win contracts for

further study”. Millner also claims that ITT would not

disclose the jam nut configuration to the Army because

ITT had the Army convinced they did not have a

solution, and to later disclose that a simple solution had

been discovered would have been embarrassing to ITT.

In support of this latter assertion, Millner relies on

inadmissible triple hearsay. Specifically, Millner alleges

that Rippe told him that Kammer told Rippe that it

would be embarrassing to disclose the proposed

solution®’. Rippe, however, stated in his deposition that

he was told to drop the matter because there was no bad

- field experience which would justify the cost of

proposing the jam nut configuration as a solution to the

shock isolator problem™.

* TTT claims that Millner has abandoned his original

claims and has now improperly asserted claims not included in his

complaint. A review of Millner’s complaint reveals that in

Paragraph 13, Millner alleges that ITT improperly accepted a

contract in 1990 to study the problems with the mounting tray.

Thus, at least some of Millner’s arguments are based on allegations

in his complaint. In any event, as ITT has fully responded to

Millner’s claims, this court will likewise address all of the issues

raised in Millner’s response brief.

3 Millner Dep. at 38:3 — 39:6.

* Rippe Dep. at 20:12 — 21:4.

App. 42

Millner has contended that ITT

wrongfully requested funds to perform both

the P31 Study and a later study known as the

Taguchi Study. As noted above, ITT and the

Army contracted for the P3I Study in 1988,

and ITT submitted a P31 Final Study Report

on September 15, 1989. Millner claims, in

essence, that the Army would not have

awarded the contract for the P31 Study had

it known of the jam nut configuration. In his

response, Millner claims that the jam nut

configuration was a proven solution. In

support of this claim, Millner directs the

court to an internal memo from Dan Rippe

to J. Kopson (dated September 1, 1987), in

which Rippe discusses two methods of

extending shock isolator life:

The second method is to change the

assembly method of the shocks. The new

method would be to use a longer center bolt

(new: 1/4 - 20 x 1.000) and jam nut

combination. With this method, loctite

(grade A) would be applied only to the jam

nut threads leaving t’ threads inside the

pedestal section clean. Repairability now

entails using a standard wrench or socket to

remove the loctited jam nut and then a

standard Allen wrench to remove the bolt

from the shock.

CN AUG AI NE 1 VETS

App. 43

In conclusion, the current assembly

process is insufficient for proper isolator

life during multi-axial random vibration.

The life and repairability of the isolators

can be maximized by a simple change in

the assembly process. Both options

discussed above have been proven through

36 hours of random vibration. A cost

analysis was done on the second method

and is submitted with this memo.

Bates No. J107.

It is important to note here that Millner has

admitted in his deposition that the jam nut configuration

was not a fully tested idea at this point. In fact, Millner’s

own testing revealed that the jam nut configuration had

serious problems. The pertinent portions of Millner’s

deposition testimony is as follows:

Did you ever do any ballistic shock testing

on (the jam nut configuration)?

Yes.

What do you believe the results of the

ballistic shock tests were?

The results show -- I can’t remember how

many drops we did. We may have only did

co ee ee ae

App. 44

[sic] a couple of drops. It indicated the top

of the jam nut came in contact with the top

-- I believe it was the top metal tray. The

mounting tray, basically, two metal sheets

separated by the four shock isolators, and

the jam nut which is on top of the main bolt

came in contact with the metal of the top

tray.

So you got metal—to-metal contact?

Yes.

Is that something that is good or bad or

indifferent in a radio?

Well, I would say it was not good.

What would you have had to have done to

have eliminated that metal-to-metal contact

with the jam nut solution?

What we could have done was probably

maybe a thinner jam nut, or it might have

turned out that was a benefit because that

would have prevented the movement of the

shock isolator. .

Would it be fair to say you never got that

far in the testing?

RA DE OER SA AES GSP SA Ea

Sk Sree

App. 45

A: Correct. Millner Dep. at 60:3 — 61:7.

Likewise, Rippe testified that the jam nut

configuration needed further testing before the idea

could actually be implemented:

Q: What was the subject of that, what you

called the final meeting*°?

A: I basically was asking Dale if we wanted to

pursue any engineering change notification

to implement any of the ideas that had been

discussed through Exhibits 4, 5, and 6, and

in response to that, Dale, who was not in a

position to say go ahead and spend funds to

implement the change, got basically Jack

Kopson and Don Kammer together, the four

of us, to discuss what to do with this

information.

Q: And what was the substance of that

discussion in that meeting?

* Rippe indicated that he could not remember the

exact date of this meeting, but estimated that it was

sometime during the first half of 1988. Rippe Dep. at

19:16.

App. 46

A: Do we want to go forward and do some

more testing possibly and look at implementing

this idea.

Q: And what was the response?

A: Well, the first and foremost response was

how do we justify the change, and the main

question was whether there were really any

field failures that would require us to make

a design change, why do we feel that it’s

inefficient.

Rippe Dep. at 19:17 - 20:11 (emphasis added).

In light of this deposition testimony, it is clear

that Millner’s allegation that ITT was aware of a

completely feasible and dependable solution to the shock

isolator problem before accepting the contract for the

P3I Study in 1988 is completely unsupported by any

evidence. Additionally, as noted infra, the P3I Study

addressed many issues and did not focus on the shock

isolator problem. Thus, even if ITT had informed the

Army of the jam nut configuration as a proposed

solution to the shock isolator problem in 1987, when

Rippe and Millner first hatched the idea, the 1988 P3]

Study would still have been necessary. After months of

discovery, Millner has not presented any evidence to the

contrary and, in particular, has not shown that even one

person has come to the conclusion that the jam nut

configuration should have been disclosed to the Army

earlier than it was.

App. 47

Even though the evidence clearly shows that the

jam nut configuration was disclosed to the Army in the

P31 Study Final Report on September 15, 1989, Millner

has alleged that ITT continued to conceal the jam nut

configuration from the Army in order to obtain funding

for another study. A few pertinent background facts are

as follows. On April 24, 1990, following the P31 Study

and the Army’s request to submit an ECP for the jam nut

configuration, ITT decided it did not want to implement

the jam nut configuration on a fixed price basis*’. Thus,

on June 12, 1990, CECOM requested that ITT submit a

bid for another design study of the entire mounting

tray” 7 On July 3, 1990, ITT submitted a bid of $48,481

to do the study of the mounting tray**. On June 30, 1991,

ITT issued a Final Design Study Report, which became

known as the Taguchi Study Report. The Taguchi Study

concluded that a stiffer mounting tray and utilization of a

different brand of shock isolator provided optimum

mounting tray performance’’. The mounting tray design

study addressed several issues relating to the mounting

37 See Bates No. J227-J228.

38 See Bates No. J229-J239.

*° Doerr Supp. Aff. at J 15; Bates No. J2538.

App. 48

tray, including use of alternative shock isolators,

different loading conditions imposed on the mounting

tray, structural integrity of the mounting tray from a

durability standpoint, investigation of possible new

materials for the mounting tray, metallurgical

implications of different welding steps, verification of

the shock isolator mounting design proposed in the P31

Study (the jam nut configuration), and the determination

of the shock isolator field replacement schedule*’. ITT

ultimately concluded that the mounting tray failures

were caused by problems with parts supplied by a

vendor".

ITT has also taken the alternative position that,

even accepting as true everything that Millner alleges,

Millner has not asserted a claim for relief under the

False Claims Act, because there is simply no evidence of

a false claim. According to ITT, for there to have been a

false claim in this case, Millner must show that there

was some sort of defect in the shock isolator, in the

practical sense, that needed improving. ITT points out

that the report submitted by Dan Rippe on September 1,

1987, was based on Rippe’s design margin testing of the

shock isolators*’. ITT points out that the purpose of a

design margin test is to take the established design and

test it to see how much (if at all), the established design

* Doerr Supp. Aff. at § 15; Bates No. J228; Bates

No. J2525.

*! Doerr Supp. Aff. at § 15.

*? Doerr Supp. Aff. § 6.a.

App. 49

exceed the specifications*’. Thus, a design margin test is

run until the part or system under testing fails, and to say

that a component fails during a design margin test is to

say only that the test worked. ITT argues that when

Rippe reported in his design margin test that the shock

isolators failed, Rippe was only stating that the design

margin test worked and not that the shock isolators were

defective. ITT claims that Millner is simply arguing that

ITT had a way to increase the design margin of the

shock isolators and, even if true, that does not make the

original design defective. ITT acknowledges that in an

engineering sense it may be better to have a 500%

design margin than a 400% design margin, but states that

until and unless the existing design is proven to be

defective, the Army (and the taxpayers) are within their

rights to insist upon the use of the current design.

Millner has claimed that the shock isolators were

defective. However, as ITT states, there is no evidence

supporting this claim. Although the shock isolators did

fail in testing at some point, there is no evidence that the

shock isolators did not meet the final requirements as per

the final SINCGARS contract. Rather the evidence

shows that the Army had used the current design for 20

years and had never experience a field failure of the

shock isolators. Affidavit of Robert Jones, Sr. at § 7, 8,

10.

App. 50

In his response to the Jones Affidavit, Millner

claims that many of the reported field failures of the

SINCGARS system, as detailed in documentation

attached to the Jones Affidavit, were caused by broken

pins, etc., which Millner attributes to vibrations

transmitted to the system. Millner further claims that if

the shock isolators were doing their job, these other

causes of field failures would have been eliminated.

Millner’s argument fails for several obvious reasons.

First, Millner has no evidence, other than his own

speculations, to connect the failed radio to shock isolator

failures. According to Jones, whose job is specifically to

collect and maintain field failure data for all technical

aspects of the SINCGARS system, the shock isolators in

the failed systems had not failed, nor caused the failure

of the system.

Second, even if some of the failures were caused

by vibration, it has never been suggested that the shock

isolators were supposed to prevent all vibration from

being transmitted to the radio. Rather, common sense

dictates that all of the radios will experience some

vibration and thus if any part of a radio has a weakness,

this limited vibration would likely cause it to fail.

Finally, it is worth noting that machinery, even

sophisticated radios, may sometimes be subjected to

stresses not contemplated by manufacturers, such as

whacks on the side when unresponsive. Thus, this court

finds that Millner’s unsupported argument that some of

the reported field failures were necessarily caused by

failures of the shock isolators is without merit.

App. 51

This court has carefully studied all of the

evidence in this case and finds that summary judgment

should be granted in favor of ITT. This court finds that

each of Millner’s asserted claims are unsupported by

admissible evidence. The unrebutted evidence clearly

shows that at the time Rippe disclosed the jam nut

configuration in 1987, the idea was still not completely

tested. The evidence further shows that, after performing

testing, ITT disclosed the jam nut configuration to the

Army on June 30, 1991, as part of the P31 Study results.

Additionally, it is clear that the shock isolator problem

was only one of many problems studied at that time.

Millner has not submitted any evidence that the Army

would not have ordered the P31 Study had it known of

the jam nut configuration in 1987. Millner has also

failed to show that any other person has held the belief

that the jam nut configuration should have been

disclosed sooner.

Further, Millner has failed to show that funds for

the Taguchi Study were granted to ITT as the result of

concealment of the jam nut configuration. The evidence

clearly shows that the Army knew of the jam nut

configuration before it ordered the study. And, as with

the P31 Study, the Taguchi Study dealt with many issues

and did not focus on the shock isolator problem. In fact,

the Study concluded that the problems with the

mounting tray were caused by substandard parts

supplied by a vendor.

App. 52

This court further finds that Millner’s claims

under the False Claim Act fail because, even if ITT had

concealed the jam nut configuration, they had no duty to

disclose it in the first place. The unrebutted evidence

clearly shows that the Army was not experiencing field

failures of the shock isolators. The only thing ITT was

required to do was to meet its contract requirements, and

Millner has not presented any evidence showing that the

final contract required more than what ITT provided.

Consequently, this court will grant summary

judgment in favor of ITT on Millner’s claims against it.

The court will now address ITT’s request for

summary judgment on its counterclaim against Millner,

which request was included in its initial brief filed

August 1, 1995. ITT filed its counterclaim, along with its

answer to Millner’s complaint, on October 26, 1994.

The docket in this case does not reflect any answer by

Millner to ITT’s counterclaim. Likewise, although

Millner has submitted over 100 pages of briefing in

connection with ITT’s motion, Millner has completely

failed to make any response to ITT’s request for

summary judgment on is counterclaim.

_ ITT has filed its counterclaim pursuant to 31

U.S.C. 13730(d) (4) which provides that:

If the Government does not proceed

with the action and the person bringing the

action conducts the action, the court may

MN aA a

App. 53

award to the defendant its reasonable

attorneys’ fees and expenses if the

defendant prevails in the action and the

court finds that the claim of the person

bringing the action was clearly frivolous,

clearly vexatious, or brought primarily for

purposes of harassment.

ITT claims that Millner’s claim under the False Claims

Act is merely the latest tactic Millner has used to harass

ITT since Millner was discharged from his employment

with ITT on June 19, 1991.

In support of its assertion that Millner’s only

intent is to harass ITT, ITT has provided the court with a

list of Millner’s previous acts against ITT:

1. After his termination, Millner picketed

ITT’s property for over fifteen weeks

bearing a sign that stated “Vietnam

Veteran Fired From Army Contract.

Thank You, ITT.”*4

Affidavit of Les Sackett at § 7.

App. 54

2. Millner conducted a defamatory letter-

writing campaign* directed at United States

Senators and Representatives, the President

of the United States, multiple branches of

the armed services including numerous

Generals, Admirals, and other ranking

officers, and foreign heads of state.

3. On July 30, 1991, Miliner filed a

baseless charge with the National Labor

Relations Board alleging violation of the

National Labor Relations Act.

4. On September 12, 1991, Millner filed a

baseless charge with the Equal

Employment Opportunity Commission

alleging that he was the victim of reverse

discrimination.

5. Finally, Millner filed the present action

on January 10, 1994.

ITT also points out that Millner admitted several times in

his deposition that he would continue to pursue ITT in

any way he could”.

*° By his own estimation, Millner has written

“800 to 1000” letters. Millner Dep. 141:112 - 16.

*°Millner Dep at 109:12—23 and at 137:10—20.

App. 55

Clearly, ITT has shown that since Millner’s

termination he has pursued a pattern of conduct

calculated to harass ITT and cause it as much harm as

possible. It is also clear that Millner’s False Claim Act is

frivolous, vexatious, and brought primarily for purposes

of harassment. Therefore, this court will grant summary

judgment in favor of ITT to the extent it is seeking

attorney fees and expenses as permitted by §3730(d) (4).

In its counterclaim (but not in its motion for

summary judgment), ITT has requested that the court

“[a] ward ITT its costs and expenses in responding to the

frivolous and harassing charges, letters and claims of

Millner.” As these costs and expenses are not permitted

to be recovered pursuant to §3730 (d) (4), this court does

not have jurisdiction to consider awarding such costs and

expenses. Rather, ITT should pursue recovery of these

items through some other avenue. Consequently, this

court will dismiss this portion of ITT’s counterclaim

without prejudice.

Finally, the court will address ITT’s request for a

permanent injunction. This request is not part of ITT’s

counterclaim and is first raised in its brief in support of

its motion for summary judgment. ITT has requested a

permanent injunction “barring Millner forever from

asserting any claims whatsoever against ITT for any

actions or occurrences prior to the date of the Court’s

Order on this Motion and award ITT its costs and fees

incurred in defending this action.”

App. 56

Although ITT has cited cases for the proposition

that the court has discretion when deciding a request for

a permanent injunction, ITT has not cited any authority

that would permit this court to grant an injunction of the

type requested under the present circumstances. While

the court may have discretion in such matters, there still

has to be some basis for exercising this discretion. In the

present case, there is simply no legal basis for this court

to grant the requested injunction. If Millner continues to

harass ITT, ITT clearly has the resources and the

evidence to pursue a state court action against Millner.

Consequently, ITT’s request for a permanent injunction

will be denied.

Conclusion

For all of the forgoing reasons, ITT’s motion for

summary judgment is hereby GRANTED with respect to

all of Millner’s claims against ITT.

Further, ITT’s motion for summary judgment is

hereby GRANTED with respect to ITT’s counterclaim

against Millner to the extent that ITT is seeking to

recover its reasonable attorney fees and expenses

incurred in defending the present action. The remainder

of ITT’s counterclaim, which requests recovery of costs

and expenses incurred as a result of defending against

NT 6 WDE ENE ra

App. 57

Millner’s other acts of

harassment, is hereby DISMISSED

WITHOUT PREJUDICE. ITT shall

submit to the court its request for fees

and expenses incurred in defending the present action

within 30 days. Millner may respond within 30 days

thereafter.

Finally, ITT’s request for a permanent injunction

is hereby DENIED.

Enter: September 27. 1995

“s/ William C. Lee”

William C. Lee, Judge

United States District Court

App. 58

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

Decided August 21, 1997

Before

Hon. THOMAS E. FAIRCHILD, Circuit Judge

Hon. WILLIAM J. BAUER, Circuit Judge

Hon. JOHN L. COFFEY, Circuit Judge

CHARLES M. MILLNER, _ ) Appeal from the United

) States District

Plaintiff-Appellant, ) Court for the Northern

) District of

) Indiana, Fort Wayne

) Division.

No. 95-3545 )

) No. 94C9

)

ITT AEROSPACE/ )

COMMUNICATIONS ) William C. Lee, Judge.

DIVISION OF ITT )

CORPORATION, )

INCORPORATED, )

Defendant- Appellee. )

Licicmscienieaieaaiiinieaaeaaiiitiaaiaal

App. 59

ORDER

On August 4, 1997, plaintiff-appellant filed a petition for

rehearing with suggestion for rehearing in banc. All the

judges on the original panel have voted to deny the

petition and none of the active judges has requested a

vote on the suggestion for rehearing in banc.

The petition for rehearing is therefore DENIED.

App. 60

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

FILED

95 NOV-3 PM 1:26

STEPHEN R. LUDWIG,

CLERK

U S DISTRICT COURT |

NORTHERN DISTRICT i

OF INDIANA 4

UNITED STATES OF AMERICA,)

) 4

Plaintiff, ) i

)

ex rel. ) CIVIL NO.

CHARLES M. MILLNER, ) 1:94cev9 |

Relator, )

)

V. )

) 4

ITT AEROSPACE/ ) ,

COMMUNICATIONS ) |

DIVISION OF ITT ) q

CORPORATION INC., ) |

) >

) i

Defendant. ) | |

App. 61

ORDER

This matter is before the court on a motion to

reconsider filed by the relator, Charles M. Millner

("Millner"), on October 10, 1995. The parties completed

briefing the motion on October 30, 1995. For the

following reasons, the motion to reconsider will be

denied.

iscussion

Millner initiated this lawsuit on January 10,

1994, pursuant to the qui tam provisions of the False

Claims Act, 31 U.S.C. §§3729-33 (1988). In his lawsuit,

Millner alleged that the defendant, ITT

Aerospace/Communications Division of ITT (“ITT”),

had knowingly presented false claims to the Army, in

connection with a defense contract. The Army’s contract

with ITT concerned the design, development, testing,

and production of a new military radio system to be used

by Army troops, the Single Channel Ground and

Airborne Radio System (“SINCGARS). On September

27, 1995, this court entered an order granting summary

judgment in favor of ITT. In this order, this court held

that Millner’s claims under the False Claims Act were

unsupported by admissible evidence. On October 10,

1995, Millner filed a 96-page motion to reconsider. This

motion is essentially a review of all of Millner’s original

arguments.

App. 62

Millner, a former employee of ITT, claims to

have invented an improvement to the SINCGARS

mounting tray that, if implemented, would increase the

life-span of the SINCGARS system thereby saving the

Army lots of money. Millner claims that ITT refused to

disclose the suggested improvement to the Army until

after performing expensive studies. However, the

evidence presented to this court in support of ITT’s

motion for summary judgment conclusively showed that

ITT informed the Army of Millner’s suggested

improvement and the Army ultimately rejected the

improvement.

Millner, in his motion to reconsider, repeats his

arguments that the shock isolators on the SINCGARS

mounting tray are defective and that his invention was a

proven solution to the problem. Millner, however,

continues to ignore the evidence that the Army simply

decided not to implement Millner’s suggested

improvement, which had not been fully tested and, thus,

the improvement never became part of the contract with

ITT.

As ITT points out, Millner has simply refused to

believe that the Army, after considering the field

performance of the SINCGA.RS system, decided that it

did not need to improve the shock isolators on the

mounting tray. Millner also continues to argue that the

Army should have implemented his suggested

improvement in order to save money, and possibly lives.

—

erp ee eS

App. 63

However, Millner’s argument is irrelevant to the issues

in this case. ITT could not have forced the improvement

on the Army, even if ITT had believed the suggested

improvement was necessary to the performance of the

mounting tray. It is clear in this case that ITT and the

Army discussed implementing Millner’s suggested

improvement, but the improvement simply never became

part of the contact. Consequently, this court repeats its

earlier holding that Millner has not presented admissible

evidence that ITT submitted a false claim to the Army.

Accordingly, Millners motion to reconsider is

hereby DENIED.

Enter: November 3, 1995.

”s/ William C. Lee”

William C. Lee, Judge

United States District Court

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.